h

                            RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 October 2006
      DOCKET NUMBER:  AR20060008764


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Joyce A. Wright               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Gerald J. Purcell             |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, removal of his Relief for Cause
Noncommissioned Officer Evaluation Report (NCOER) covering the period
November 2002 through March 2003 from the Restricted (R) fiche of his
Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that he received a Relief for Cause
NCOER and, at that time, the proper procedures for giving him this NCOER
were disregarded by his chain of command.  Previous to receiving his NCOER,
he was on the promotion list for SFC (Sergeant First Class), but his
promotion was flagged due to the negative NCOER.  With help of counsel, he
prepared and sent an appeal to the NCOER Appeal Board to have his NCOER
thrown out and his promotion orders reinstated.

3.  Shortly thereafter, he received a letter from the AHRC (Army Human
Resources Command) stating that his promotion had been reinstated.  He
assumed that the negative NCOER had also been removed from his OMPF.  Much
to his dismay, he recently discovered that the NCOER was still in his OMPF.
 He hereby requests that the Board remove the negative NCOER from his "R"
fiche, of his OMPF for the same reasons as he sent to the NCOER Appeal
board.

4.  The applicant provides a copy of his previous NCOER covering the period
November 2001 through October 2002, a copy of his NCOER appeal, with
supporting evidence, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he is currently serving on active
duty in the rank of sergeant first class (SFC/E-7).

2.  The applicant provided a copy of his previous NCOER covering the period
November 2001 through October 2002 which shows his height and weight as
"68/153."  He was also rated as "among the best" with top marks from his
senior rater (SR).

3.  On 22 August 2003, the applicant received a Relief for Cause NCOER
covering the period November 2002 through March 2003.


4.  In Part IVa, under Army Values (Rater), the rater indicated in the
bullet comments block that the applicant "failed to show respect to
superiors and subordinated on a regular basis," "made verbal threats
against leaders within a combat zone," and was "forced to comply with Army
regulations."

5.  In Part IVc, under "Physical Fitness," the rater gave the applicant a
"Needs Improvement (Some)" rating.  He indicated that the applicant "failed
to maintain temper and self control when placed in stressful situations,"
"possesses the stamina to endure physically until mission completion," and
"appearance always looked like a Soldier."  This section indicated his
height and weight as "66/165."

6.  Under "Leadership," in Part IVd, the rater gave the applicant a rating
of "Needs Improvement (Much)" and indicated in the remarks section, "made
verbal threats to Lock and Load on people who upset him while possessing
ammunition within a combat zone," "used foul, disrespectful, and abusive
language when addressing a commissioned officer," and "prioritized his
personal needs over the battery’s overall mission while training in
preparation for the invasion of Iraq."

7.  Under "Responsibility and Accountability," in Part IVf, the rater gave
the applicant a rating of "Success" and indicated in the remarks section,
"rated NCO has been notified of the reason for relief."  He also indicated
in the remarks section "responded to criticism with comments of being
chaptered rather than facing recommended punishment."

8.  In Part V (Overall Performance and Potential), block a (Rater/Overall
potential for promotion and/or service in positions of greater
responsibility), the rater placed an "X" in the "Marginal" block.

9.  In Part Ve (Senior Rater Bullet Comments) the SR indicated, "promote
only at the needs of the Army," " do not place in positions of authority
over Soldiers; does not possess the temperament and rational to effectively
train and mentor," and "exhibits disrespect towards Soldiers at all levels
regardless of rank or position."

10.  In Part Vc, the Senior Rater’s overall rating of the applicant's
performance was "Poor" (with a Numerical Score of "5") and his "Overall
potential for promotion and/or service in positions of greater
responsibility" as "Poor" (with a Numerical Score of "4").

11.  The applicant was promoted to SFC/E-7 with an effective date and date
of rank (DOR) of 1 March 2004.

12.  On 22 March 2004, the applicant appealed his NCOER for the period
November 2002 through March 2003 to the Department of the Army, Enlisted
Special Review Board (ESRB).  He based his appeal on administrative and
substantive error.  The administrative error was that the SR listed on the
NCOER was not the officer that served in that position during the rating
period.  The SR, Captain, J____ C. S______ was the Battery Commander of
Alpha Battery,          1st Battalion, 9th Field Artillery Regiment, during
the rating period and served as the SR.  Captain (CPT) W______ B_____ who
was listed as the SR, and who signed the NCOER did not become the Battery
Commander until June 2003 (See Officer Record Brief [ORB]), three months
after the rating period ended for this NCOER.  In addition, in Part III(d),
of the NCOER, CPT S________ is listed with his e-mail address as the SR
whereas in Part II (b), CPT B______ is listed as the SR and signed the
NCOER as such.  He was also never notified that a Relief for Cause NCOER
was being done for him.

13.  Army Regulation 623-205, paragraph 3-32, required that the statement,
"the rated NCO has been notified of the reason for the relief" actually be
entered on the NCOER.  He was never notified pursuant to the regulation and
never received the appropriate counseling.  He did not even receive the
opportunity to review or sign his Relief for Cause NCOER.  The notation
"refuses to sign" was put in without him ever seeing this NCOER.

14.  The height and weight data in Part IV (c) is in error.  The NCOER he
received for the prior rating period showed him with a height of 68 inches
and a weight of 153 pounds.  This NCOER shows him as having lost two inches
and gained 12 pounds.  That is a significant weight gain for a five month
period, a good portion of which he spent in a combat zone.  The loss of two
inches in height cannot be explained other than this data is in error.

15.  The substantive errors are that all of the ratings and negative
remarks are absolutely unfair and unsupported.  There was no evidence to
support any of these remarks.  All of his previous NCOERS show an
outstanding duty performance.  His NCOER for the previous rating period
rated him at "among the best" with top marks from his SR.  This current
NCOER shows just the opposite.  There is nothing to support how he went
from an outstanding duty performance in one rating period to this worst
performance in this rating period.  He has submitted several supporting
documents from his peers and commanders who had seen his consistent
outstanding performance and who stated that his NCOER was not only
administratively incorrect and rife with errors, but was also substantively
incorrect and not at all a fair evaluation of his performance as a Soldier.

16.  In fact, he was recommended and approved for an Army Commendation
Medal for his performance during this same rating period.  He believed that
this NCOER was the product of an attempt to hurt his military career out of
some personal resentment by those involved.  This was evident by the fact
that he was never counseled for any action prior to the creation of this
NCOER.  If his duty performance was that bad or this NCOER was precipitated
by such a bad action then he should have received at least some form of
counseling.  In this case, he received absolutely no counseling because
there was nothing to counsel him about.  Second, he never saw the NCOER.
The NCOER states that he refused to sign it, but he never saw it until he
discovered it in his OMPF.  He was completely blindsided by this.  These
things in addition to the many administrative errors lead him to believe
that someone tried to push this NCOER through the system, hurt his chances
for promotion, and ultimately his career without him knowing what was going
on until it was too late.

17.  He indicated that the Relief for Cause NCOER and his previous NCOER
were totally contradictory and that his entire record showed consistent
outstanding duty performance.  He concluded that this NCOER was not factual
and may require further investigation by the Battalion Commander.

18.  The applicant also provided several supporting documents with his
appeal from key officers and enlisted personnel in his command who attested
to his character and performance of duty as an NCO.  He further provided
documents which supported his request for retention on the Centralized
Promotion List for SFC/E-7.

19.  On 24 May 2004, the Chief, Records Services Division, U.S. Army
Enlisted Records and Evaluation Center (EREC), prepared a memorandum for
the Commander, Office of the Deputy Chief of Staff (ODCS), G-1, Subject:
Substantive Evaluation Report Appeal, pertaining to the applicant.  The G-1
was notified that the NCOER in question was not seen by the DA Centralized
Promotion Board and the NCOER was forwarded for consideration by the DA
ESRB.

20.  On 26 July 2004, the President, ESRB, ODCS, G-1, prepared a memorandum
for the Chief, NCO Evaluation Branch, AHRC-Indianapolis, Subject:
Substantive Evaluation Report Appeal, pertaining to the applicant.  The
President indicated that the ESRB had adjudicated an appeal on the
applicant.  A decision was made that the evidence did justify amending the
evaluation report rendered on the applicant for the period November 2002
through March 2003.  The President, ESRB, also indicated that the EREC
would amend the evaluation as follows:

      a.  Change the SR's email address in Part IIId to read "w______.b
________@;

      b.  Change the height in Part IVc to read "68"; and

      c.  Delete the SR's assessment in Part Vc, d, and e and add bullet,
"SR does not meet minimum qualifications."

21.  In his memorandum to the Chief, NCO Evaluation Branch, AHRC-
Indianapolis, the President, ESRB, directed that the appeal be filed on the
applicant's "R" fiche and promotion consideration was not applicable.

22.  The applicant provided a copy of the corrected report which shows his
height and weight as "68/165.  The comment "SR does not meet minimum
qualifications" now appears in Part Ve (Senior Rater Bullet Comments).

23.  On 9 August 2004, the Chief, Records Services Division, EREC,
responded to the applicant's appeal.  EREC informed the applicant that his
appeal was reviewed by the ESRB.  The ESRB determined that the report in
question would be corrected and defined those corrections that were to be
made.  The ESRB advised him through EREC that the Board had determined that
reconsideration for promotion was not warranted because of the corrective
action and that he may review the corrective action on his OMPF.

24.  The applicant provides a copy of an ORB for the officer who served as
his SR, on his previous NCOER covering the period November 2001 through
October 2002.  This officer, Captain J_____C. W_____, was the commander of
Alpha Battery, 1st Battalion, 9th Field Artillery Regiment, during the
rating period.

25.  The applicant also provides a copy an ORB for the officer, who is
listed on his contested report/corrected report, W______P. B_______, as his
SR.  This officer arrived at his unit on 11 August 2003, after the
contested report had been rendered.

26.  A review of the applicant's OMPF reveals that his Relief for Cause
NCOER, for the period November 2002 thorough March 2003 is currently shown
on his "R" fiche and his corrected copy is shown on his Performance (P)
fiche of his OMPF.



27.  Army Regulation 623-205 serves as the authority for the preparation
and submission of the NCOER.  It provides, in pertinent part, that a relief
for cause is defined as the removal of a NCO from a ratable assignment
based on a decision by a member of the NCO's chain of command or
supervisory chain that the NCO's personal or professional characteristics,
conduct, behavior, or performance of duty warrant removal in the best
interest of the Army.  If relief for cause is contemplated on the basis of
an informal investigation conducted under Army Regulation 15-6, the
referral procedures contained in that regulation must be complied with
before the act of initiating or directing relief.  If the relief is
directed by an official other than the rater or SR (Senior Rater), the
official directing the relief will describe the reasons for the relief in
an enclosure to the report.  Regardless of who directs the relief, the
rater will enter the statement "The rated NCO has been notified of the
reasons for the relief."

28.  The above cited regulation also provides, in pertinent part, that
there are no provisions for referring an adverse NCOER to an NCO; however,
the rated NCO has the option to request a commander's inquiry and to submit
an appeal of the NCOER to the ESRB.

29.  Paragraph 2-10, of the same regulation, pertains to the Senior Rater
(SR).   It states that: (a) the senior rater uses his or her position and
experience to evaluate the rated NCO from a broad organizational
perspective.  His or her evaluation is the link between the day-to-day
observation of the rated NCO’s performance by the rater and the longer-term
evaluation of the rated NCO’s potential by DA selection boards; and (b)
normally, to evaluate an NCO, the senior rater must be designated and serve
in that capacity for at least 60 rated
days.

30.  Paragraph 2-11 states that the SR's role is primarily to evaluate
potential,      over-watch the performance evaluation, and mentor
subordinates.  The SR will: (a) use all reasonable means to become familiar
with the rated NCO’s performance throughout the rating period; (b) prepare
a fair, correct report evaluating the NCO’s duty performance,
professionalism, and potential.

31.  Paragraph 3-1 provides the evaluation role of the rating official.  It
states, in pertinent part, that rating officials must prepare complete,
accurate, and fully considered evaluation reports and that evaluations will
not normally be based on isolated minor incidents

32.  Paragraph 3-8 of Army Regulation 623-205 prescribes the
responsibilities of the senior rating official and states that he or she
will ensure the APFT and height/weight entries are correct in part IVc.
33.  Chapter 4, AR 623-205, contains the policy and procedure for appealing
NCOERs and paragraph 4-2 establishes that an NCOER that has been accepted
for filing in the OMPF of a noncommissioned officer is presumed to be
administratively correct, has been prepared by the proper rating officials,
and is deemed to represent the considered opinion and best judgment of
rating officials at the time of its preparation.

34.  Paragraph 6-13 of Army Regulation 623-205 specifies the administrative
instructions for completion of the entries for height and weight in item
part IVc of the NCOER.  Those instructions require the rating official to
enter the rated NCO's verified height and weight (in inches and pounds) as
of the rater's signature date and an entry of "YES" or "NO" to indicate
compliance or noncompliance with the provisions of AR 600-9.  The data will
be typed in part IVc.  Example entries are "72/180 YES" or "68/205 NO".

35.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the Official Military Personnel
File, the Military Personnel Records Jacket, the Career Management
Individual File (CMIF), and Army Personnel Qualification Records. 
Paragraph 2-4 of this regulation states that once a document is placed in
the Official Military Personnel File it becomes a permanent part of that
file and will not be removed from that file or moved to another part of the
file unless directed by the Army Board for Correction of Military Records,
DASEB, Army Appeals Board, the Chief of Appeals and Corrections Branch of
the AHRC, or the Official Military Personnel File custodian when documents
have been improperly filed, AHRC an exception, Chief of the Appeals Branch
of the Army Reserve Personnel Center, and Chief of the Appeals Branch of
the National Guard Personnel Center. 

36.  Table 2 of the regulation pertains to the composition of the OMPF.  It
states, in pertinent part, that NCOERs will be filed in the Performance
section.  It also states that documents that accompany an adverse action,
relief for cause, will be filed on the R fiche.

37.  AR 600-8-104 provides policy and procedure for maintenance of a
Soldier's personal information.  The R-Fiche, of a Soldier's OMPF is used
for historical data that may normally be improper for viewing by selection
boards or career managers.  The release of information on this fiche is
strictly controlled and will not be released without written approval from
the CG, PERSCOM [now the Commander, Human Resources Command]; the
Commander, ARPERCEN; the Commander, ARNG Personnel Center, or the HQDA
selection board proponent.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was rendered a Relief
for Cause NCOER covering the period November 2002 through March 2003.
He appealed this report and based his appeal on the contention that the
contested report contained administrative and substantial errors.

2.  In his appeal, he requested that he be retained on the Centralized
Promotion List for SFC/E-7.  He was later promoted to SFC/E-7 with an
effective date and date of rank of "1 March 2004."

3.  The ESRB determined that, after a review of the evidence, that the
evidence did justify amending the contested report and that EREC would
amend the evaluation.  The NCOER was corrected as indicated by the
President, ESRB, in the memorandum dated 26 July 2004.  In his memorandum,
he directed EREC to file the appeal on the applicant's "R" fiche, of his
OMPF.

4.  The applicant was provided a copy of the corrected reported and was
informed that he could review the contested report on his OMPF.

5.  The applicant's contested report is currently filed on his "R" fiche,
with all allied document, and the corrected copy is located on his "P"
fiche of his OMPF.

6.  By regulation, there must be clear and compelling evidence to support
the removal of a contested report from an individual's "R" fiche of his
OMPF by the ABCMR.  Absent any evidence meeting this regulatory standard,
there is an insufficient evidentiary basis to support removing the document
in question from the applicant’s "R" fiche of his OMPF.

7.  The applicant's feelings that his contested report should be removed as
the same reasons as it was sent to the ESRB have been considered.  The R-
Fiche, that portion of the applicant's OMPF upon which the contested report
is filed, is used for historical data that may normally be improper for
viewing by selection boards or career managers.  The release of information
on this fiche is strictly controlled and will not be released without
written approval from the Commander, AHRC, or the HQDA selection board
proponent.

8.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JI____  ___KSJ __  ___GJP _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                                  ____   John Infante_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060008764                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061012                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |ACTIVE DUTY                             |
|DISCHARGE AUTHORITY     |AR . . . ACTIVE DUTY                    |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |111                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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